BILL NUMBER: SB 2153	CHAPTERED  09/30/00

	CHAPTER   1011
	FILED WITH SECRETARY OF STATE   SEPTEMBER 30, 2000
	APPROVED BY GOVERNOR   SEPTEMBER 29, 2000
	PASSED THE SENATE   AUGUST 18, 2000
	PASSED THE ASSEMBLY   AUGUST 10, 2000
	AMENDED IN ASSEMBLY   AUGUST 7, 2000
	AMENDED IN ASSEMBLY   JUNE 27, 2000
	AMENDED IN ASSEMBLY   JUNE 13, 2000
	AMENDED IN SENATE   APRIL 3, 2000

INTRODUCED BY   Senator Schiff

                        FEBRUARY 25, 2000

   An act to amend Sections 639 and 1282.4 of the Code of Civil
Procedure, relating to civil proceedings.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 2153, Schiff.  Civil proceedings:  referees:  arbitrators.
   (1) Existing law provides for the appointment of a referee to hear
and determine, among other things, discovery motions and disputes
relevant to discovery in a civil action.  Existing law also
authorizes a party to file a peremptory challenge to a person
appointed as a referee on specified grounds.
   This bill would require that a motion to disqualify a referee
appointed to hear and determine discovery matters be made either (1)
within 10 days after notice of the appointment, or, if the party has
not yet appeared in the action, within 10 days after the appearance,
or (2) at least 5 days before the date set for the hearing, if the
referee assigned is known at least 10 days before the date set for
the hearing and the discovery referee has been assigned only for
limited discovery purposes.  The bill would also require the order
appointing a discovery referee to indicate whether the referee is
being appointed for all discovery purposes in the action.
   The bill would incorporate additional changes to Section 639 of
the Code of Civil Procedure made by AB 2912 to become operative only
if both bills are enacted and this bill is enacted last.
   (2) Existing law, effective only until January 1, 2001, permits
persons admitted to the bar of any other state to represent a party
in an arbitration proceeding in this state, or to render legal
services in this state in connection with an arbitration proceeding
in another state; requires out-of-state attorneys representing a
party in a California arbitration proceeding to serve upon the
arbitrator, the State Bar of California, the parties, and counsel a
certificate containing specified information prior to the first
scheduled hearing in the arbitration; and permits any party to an
arbitration arising under certain collective bargaining agreements to
be represented by any person.
   This bill would extend these provisions until January 1, 2006.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 639 of the Code of Civil Procedure is amended
to read:
   639.  When the parties do not consent, the court may, upon the
application of any party, or of its own motion, direct a reference in
the following cases:
   (a) When the trial of an issue of fact requires the examination of
a long account on either side; in which case the referees may be
directed to hear and decide the whole issue, or report upon any
specific question of fact involved therein.
   (b) When the taking of an account is necessary for the information
of the court before judgment, or for carrying a judgment or order
into effect.
   (c) When a question of fact, other than upon the pleadings, arises
upon motion or otherwise, in any stage of the action.
   (d) When it is necessary for the information of the court in a
special proceeding.
   (e) When the court in any pending action determines in its
discretion that it is necessary for the court to appoint a referee to
hear and determine any and all discovery motions and disputes
relevant to discovery in the action and to report findings and make a
recommendation thereon.  In a discovery matter, a motion to
disqualify an appointed referee pursuant to Section 170.6 shall be
made to the court by a party either:
   (1) Within 10 days after notice of the appointment, or if the
party has not yet appeared in the action, a motion shall be made
within 10 days after the appearance, if a discovery referee has been
appointed for all discovery purposes.
   (2) At least five days before the date set for hearing, if the
referee assigned is known at least 10 days before the date set for
hearing and the discovery referee has been assigned only for limited
discovery purposes.
   (f) When a referee is appointed pursuant to subdivision (e), the
order shall indicate whether the referee is being appointed for all
discovery purposes in the action.
  SEC. 1.5.  Section 639 of the Code of Civil Procedure is amended to
read:
   639.  (a) When the parties do not consent, the court may, upon the
  written motion of any party, or of its own motion,  appoint a
referee in the following cases:
   (1) When the trial of an issue of fact requires the examination of
a long account on either side; in which case the referees may be
directed to hear and decide the whole issue, or report upon any
specific question of fact involved therein.
   (2) When the taking of an account is necessary for the information
of the court before judgment, or for carrying a judgment or order
into effect.
   (3) When a question of fact, other than upon the pleadings, arises
upon motion or otherwise, in any stage of the action.
   (4) When it is necessary for the information of the court in a
special proceeding.
   (5) When the court in any pending action determines that it is
necessary for the court to appoint a referee to hear and determine
any and all discovery motions and disputes relevant to discovery in
the action and to report findings and make a recommendation thereon.

   (b) In a discovery matter, a motion to disqualify an appointed
referee pursuant to Section 170.6 shall be made to the court by a
party either:
   (A) Within 10 days after notice of the appointment, or if the
party has not yet appeared in the action, a motion shall be made
within 10 days after the appearance, if a discovery referee has been
appointed for all discovery purposes.
   (B) At least five days before the date set for hearing, if the
referee assigned is known at least 10 days before the date set for
hearing and the discovery referee has been assigned only for limited
discovery purposes.
   (c) When a referee is appointed pursuant to paragraph (5) of
subdivision (a), the order shall indicate whether the referee is
being appointed for all discovery purposes in the action.
   (d) All appointments of referees pursuant to this section shall be
by written order and shall include the following:
   (1) When the referee is appointed pursuant to paragraph (1), (2),
(3), or (4) of subdivision (a), a statement of the reason the referee
is being appointed.
   (2) When the referee is appointed pursuant to paragraph (5) of
subdivision (a), the exceptional circumstances requiring the
reference, which must be specific to the circumstances of the
particular case.
   (3) The subject matter or matters included in the reference.
   (4) The name, business address, and telephone number of the
referee.
   (5) The maximum hourly rate the referee may charge and, at the
request of any party, the maximum number of hours for which the
referee may charge.  Upon the written application of any party or the
referee, the court may, for good cause shown, modify the maximum
number of hours subject to any findings as set forth in paragraph
(6).
   (6) (A) Either a finding that no party has established an economic
inability to pay a pro rata share of the referee's fee or a finding
that one or more parties has established an economic inability to pay
a pro rata share of the referee's fees and that another party has
agreed voluntarily to pay that additional share of the referee's fee.
  A court shall not appoint a referee at a cost to the parties if
neither of these findings is made.
   (B) In determining whether a party has established an inability to
pay the referee's fees under subparagraph (A), the court shall
consider only the ability of the party, not the party's counsel, to
pay these fees.  If a party is proceeding in forma pauperis, the
party shall be deemed by the court to have an economic inability to
pay the referee's fees.  However, a determination of economic
inability to pay the fees shall not be limited to parties that
proceed in forma pauperis.  For those parties who are not proceeding
in forma pauperis, the court, in determining whether a party has
established an inability to pay the fees, shall consider, among other
things, the estimated cost of the referral and the impact of the
proposed fees on the party's ability to proceed with the litigation.

   (e) In any matter in which a referee is appointed pursuant to
paragraph (5) of subdivision (a), a copy of the order appointing the
referee shall be forwarded to the office of the presiding judge of
the court.  The Judicial Council shall, by rule, collect information
on the use of these references and the reference fees charged to
litigants, and shall report thereon to the Legislature by January 1,
2003.  This subdivision shall become inoperative on January 1, 2004.

  SEC. 2.  Section 1282.4 of the Code of Civil Procedure, as amended
by Section 1 of Chapter 915 of the Statutes of 1998, is amended to
read:
   1282.4.  (a) A party to the arbitration has the right to be
represented by an attorney at any proceeding or hearing in
arbitration under this title.  A waiver of this right may be revoked;
but if a party revokes such waiver, the other party is entitled to a
reasonable continuance for the purpose of procuring an attorney.
   (b) Notwithstanding any other provision of law, including Section
6125 of the Business and Professions Code, an attorney admitted to
the bar of any other state may represent the parties in the course
of, or in connection with, an arbitration proceeding in this state,
provided that the attorney, if not admitted to the State Bar of
California, timely files the certificate described in subdivision (c)
and the attorney's appearance is approved by the arbitrator, the
arbitrators, or the arbitral forum.
   (c) Prior to the first scheduled hearing in an arbitration, the
attorney described in subdivision (b) shall serve a certificate on
the arbitrator or arbitrators, the State Bar of California, and all
other parties and counsel in the arbitration whose addresses are
known to the attorney.  In the event that the attorney is retained
after the first hearing has commenced, then the certificate shall be
served prior to the first hearing at which the attorney appears.  The
certificate shall state all of the following:
   (1) The attorney's residence and office address.
   (2) The courts before which the attorney has been admitted to
practice and the dates of admission.
   (3) That the attorney is currently a member in good standing of,
and eligible to practice law before, the bar of those courts.
   (4) That the attorney is not currently on suspension or disbarred
from the practice of law before the bar of any court.
   (5) That the attorney is not a resident of the State of
California.
   (6) That the attorney is not regularly employed in the State of
California.
   (7) That the attorney is not regularly engaged in substantial
business, professional, or other activities in the State of
California.
   (8) That the attorney agrees to be subject to the jurisdiction of
the courts of this state with respect to the law of this state
governing the conduct of attorneys to the same extent as a member of
the State Bar of California.
   (9) The title of the court and the cause in which the attorney has
filed an application to appear as counsel pro hac vice in this state
or filed a certificate pursuant to this section in the preceding two
years, the date of each application, and whether or not it was
granted.
   (10) The name, address, and telephone number of the active member
of the State Bar of California who is the attorney of record.
   (d) Failure to timely file the certificate described in
subdivision (c) or, absent special circumstances, repeated
appearances shall be grounds for disqualification from serving as the
attorney of record in the arbitration in which the certificate was
filed.
   (e) An attorney who files a certificate containing false
information or who otherwise fails to comply with the standards of
professional conduct required of members of the State Bar of
California shall be subject to the disciplinary jurisdiction of the
State Bar with respect to any of his or her acts occurring in the
course of the arbitration.
   (f) Notwithstanding any other provision of law, including Section
6125 of the Business and Professions Code, an attorney who is a
member in good standing of the bar of any state may represent the
parties in connection with rendering legal services in this state in
the course of and in connection with an arbitration pending in
another state.
   (g) Notwithstanding any other provision of law, including Section
6125 of the Business and Professions Code, any party to an
arbitration arising under collective bargaining agreements in
industries and provisions subject to either state or federal law may
be represented in the course of, and in connection with, those
proceedings by any person, regardless of whether that person is
licensed to practice law in this state.
   (h) Nothing in this section shall apply to Division 4 (commencing
with Section 3201) of the Labor Code.
   (i) (1) In enacting the amendments to this section made by
Assembly Bill 2086 of the 1997-98 Regular Session, it is the intent
of the Legislature to respond to the holding in Birbrower v. Superior
Court (1998) 17 Cal.4th 117, as modified at 17 Cal.4th 643a
(hereafter Birbrower), to provide a procedure for nonresident
attorneys who are not licensed in this state to appear in California
arbitration proceedings.
   (2) In enacting subdivision (g), it is the intent of the
Legislature to make clear that any party to an arbitration arising
under a collective bargaining agreement governed by the laws of this
state may be represented in the course of and in connection with
those proceedings by any person regardless of whether that person is
licensed to practice law in this state.
   (3) Except as otherwise specifically provided in this section, in
enacting the amendments to this section made by Assembly Bill 2086 of
the 1997-98 Regular Session, it is the Legislature's intent that
nothing in this section is intended to expand or restrict the ability
of a party prior to the decision in Birbrower to elect to be
represented by any person in a nonjudicial arbitration proceeding, to
the extent those rights or abilities existed prior to that decision.
  To the extent that Birbrower is interpreted to expand or restrict
that right or ability pursuant to the laws of this state, it is
hereby abrogated except as specifically provided in this section.
   (4) In enacting subdivision (h), it is the intent of the
Legislature to make clear that nothing in this section shall affect
those provisions of law governing the right of injured workers to
elect to be represented by any person, regardless of whether that
person is licensed to practice law in this state, as set forth in
Division 4 (commencing with Section 3200) of the Labor Code.
   (j) This section shall be operative until January 1, 2006, and on
that date shall be repealed.
  SEC. 3.  Section 1282.4 of the Code of Civil Procedure, as added by
Section 2 of Chapter 915 of the Statutes of 1998, is amended to
read:
   1282.4.  (a) A party to the arbitration has the right to be
represented by an attorney at any proceeding or hearing in
arbitration under this title.  A waiver of this right may be revoked;
but if a party revokes the waiver, the other party is entitled to a
reasonable continuance for the purpose of procuring an attorney.
   (b) This section shall become operative on January 1, 2006.
  SEC. 4.  Section 1.5 of this bill incorporates amendments to
Section 639 of the Code of Civil Procedure proposed by both this bill
and AB 2912.  It shall only become operative if (1) both bills are
enacted and become effective on or before January 1, 2001, (2) each
bill amends Section 639 of the Code of Civil Procedure, and (3) this
bill is enacted after AB 2912, in which case Section 1 of this bill
shall not become operative.
